September 02, 2011

City Files to Keep Mayor Out of Deposition Chair

City attorneys moved Thursday evening to keep Mayor Vincent Gray out of a deposition chair in a wrongful termination lawsuit filed by the city's former contract chief.

Eric Payne, also a practicing attorney, served as director of contracts in the city's Office of the Chief Financial Officer from 2006 until he was fired in January 2009. Payne, in his
complaint (PDF), claims he was fired because he attempted to blow the whistle on what he believed was the city's improper handling of bidding for lottery contractors.

Gray, who took office as mayor in January, was a member of the District of Columbia Council at the time. Payne subpoenaed Gray to give deposition testimony on Sept. 15, prompting the Office of the Attorney General to file the
motion (PDF) yesterday for a protective order barring the deposition.

The city is arguing that Gray is protected by legislative immunity from testifying and also that Payne failed to “demonstrate the type of extraordinary circumstances necessary to justify burdening a high-ranking city official, such as the Mayor, with appearing for a deposition.”

Payne, in a phone interview Friday morning, said he believes the “the court has an interest in seeing that justice is served.”

“We look forward to having Mayor Gray and other members of the council under oath tell us and the court exactly what was said, what action were taken related to the lottery contract,” Payne said, noting that he has also issued subpoenas to Councilmember Jack Evans (D-Ward 2), Councilmember Jim Graham (D-Ward 1) and the city’s CFO, Natwar Gandhi.

A spokesman for the attorney general’s office declined to comment beyond what was in the brief. Payne’s attorney, Washington solo practitioner Donald Temple, was not available for comment.

In March, U.S. District Judge Paul Friedman partially granted and denied the city’s motion to dismiss, finding that Payne could sue under the city’s Whistleblower Act but had failed to meet the standard for suing under the D.C. False Claims Act. The difference, Friedman explained, was between alleging wrongful termination for reporting on government waste versus reporting on government fraud.

After several years of security breaches in the D.C. Lottery program, the city opened bidding for a new contractor. Payne claimed officials interfered with the process and took his concerns to the Office of Integrity and Oversight. He was fired in January 2009, a move he alleges was made in retaliation for his attempts to report on problems he saw within the lottery contracting process.